The Food Safety Modernization Act : What We Should Expect

January 4, 2012

In January, President Obama signed into law the
Food Safety Modernization Act {FSMA}. This law hopes to put focus on prevention of food borne outbreaks. We have all seen the impact of salmonella and ecoli outbreaks, especially with the recent massive recall of 36 Million pounds of Cargill Turkey. Through the new law the FDA is provided with new enforcement and inspection authorities.

According to Michael Taylor, FDA's deputy commissioner for foods, "These new authorities are critical for the law's success, they give the food companies strong additional incentives for keeping their products safe and that helps us achieve the new law's goal, which is to protect consumers from unsafe food."

Health concerns and safety is the key motivation for implementing these changes, however the health care systems also takes a big hit when these food borne outbreaks arise. The cost of health care significantly rises. The FDA realizes that
many of these outbreaks can be prevented, and that spawned their motivation for change.

The following are the key provisions from the FDA:

Expanded administrative detention: The law gives FDA more authority to prevent the release into the marketplace of adulterated or misbranded food, including potentially harmful food. Food adulteration can be caused by many factors, including bacterial or chemical contamination, filth or decomposition, the presence of an unsafe food additive, being prepared, packed or held under insanitary conditions, and leaving valuable materials out of the product or substituting other, inferior materials. Misbranding food can be caused by ways that include not declaring certain ingredients or major food allergens, and not complying with nutrition information content on labeling.
Records inspection: The law expands FDA's authority to gain access to records about potentially hazardous foods. In addition to examining the records tied to a particular food that could pose a health hazard, the agency can now inspect records related to any other food it believes is likely to be affected in a similar manner.

Authority to deny entry: Under FSMA, if a food producer in another country does not permit FDA to inspect its facility, FDA can refuse to allow food from that facility into the United States.

Enforcement Measures: Another great benefit to the new law is the strength gained by FDA's enforcement tools in the event that potentially unsafe food has already been stocked on the shelves our marketplace.

Suspension of registration: The law authorizes FDA to suspend the registration of a facility under certain circumstances if the food it manufactured, processed, packed, received or held presents a serious health hazard. A facility with a suspended registration will not be able to legally offer food for sale in the United States until FDA lifts the suspension.

Mandatory recall: Before FSMA, FDA had to rely on a firm's voluntary decision to remove food from the marketplace that could be hazardous to humans or animals. Under the new law, the agency can order a recall if the company does not cease distribution itself and recall its product. If there is reason to believe that the food is adulterated or misbranded and that use of the product could result in serious illness or death, FDA can order that distribution be halted and all implicated products recalled. Additionally, FDA has launched a new search engine6 where consumers can quickly and easily check on new and recent recalls.

The FDA is also working on food tracing system to track both imported and exported food. They will begin pilot testing products to establish how quickly they can identify recipients of food products. In order for this step to work, they also need be able to rapidly find the source of the food borne outbreak as well as understand its scope. Food tracing will not prevent an outbreak, however according to Bill Correll at FDA's Center for Food Safety and Applied Nutrition, "it can prevent further illness during an outbreak when FDA can determine the source, contain further exposure and get the product recalled and out of distribution and consumer households."

In the last year alone, the FDA has recalled strawberries, papayas, bagged salad, eggs and turkey products due to various strains of bacteria. Prior to the recall of Cargill turkey products, one person died from salmonella poisoning. Food products fall under the liability umbrella as defective products, just as cars, toys and other items. If you believe you have contacted an illness from a food product, either at home or from food purchased at a restaurant or drive through, you will need a dedicated and compassionate legal team. Companies need to be held responsible for their reckless behavior.

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